Harry Litman teaches constitutional law at the University of California at San Diego and practices law at the firm Constantine Cannon. He was U.S. attorney for the Western District of Pennsylvania from 1998 to 2001 and deputy assistant attorney general from 1993 to 1998.
Count me as one Democrat who thinks President Trump has made an excellent choice in his decision to nominate William P. Barr for U.S. attorney general.
When he was just 41, Barr became attorney general under President George H.W. Bush, whose recent death, and the adulatory accounts of his presidency that followed, may have put some wind at Barr’s back.
That won’t sustain Barr for long in the Senate, where most, if not all, Democrats may begin predisposed against him.
But they should look carefully at his qualifications. Barr had an unusual path to the position the first time around. He ascended from the Office of Legal Counsel — the department’s adviser on complicated constitutional matters, where he expressed some controversially strong views on presidential power — and was deputy attorney general under Richard Thornburgh. He came to Bush’s attention through his adroit management of a 1991 hostage crisis at the Talladega Federal Prison in Alabama.
I worked under Barr at the Justice Department in 1991 and 1992. Was he, and is he, very conservative? You bet. Barr’s concern was for the line prosecutors at Justice, the FBI agents in the field and even the cop on the beat. But the roots of his political views concern the rule of law, public safety and the fair application of legal rules to all.
Sure to draw scrutiny in Barr’s nomination hearings is his support for long sentences for criminal career offenders, a view that in recent years many conservatives have revisited. At the time, Barr’s view concerned the entrenched, and still unsolved, problem of the-worst-of-the-worst. In most places, there is a small cadre of incorrigible career offenders — in Pittsburgh when I was U.S. attorney they numbered a few hundred — who predictably will spend their years between late teens and late 30s perpetrating violent crimes or in jail. Barr’s inclination was that prison was really the only solution for these intransigent, violent offenders. It is a harsh viewpoint, but I am hard-pressed to come up with a better one.
Barr may struggle to defend his suggestion that an independent counsel might be justified to look into Hillary Clinton’s alleged provision of uranium to Russia in return for donations to the now-shuttered Clinton Foundation. It may well be that he was making a different point: that Americans should not look to the Justice Department to criminalize political differences. But we shall see. To the extent that he really believed Clinton’s alleged activities deserved an investigation, I disagree strongly and wouldn’t seek to defend his view. But Barr surely will in the upcoming hearings.
Finally, Barr, in particular when he was at the Office of Legal Counsel, was well-known for his robust views of presidential power, which of course will generate concern that he might lend support to Trump’s nutty fantasies about his own power. No doubt Barr champions a strong presidency, and he has publicly endorsed the controversial idea of the “unitary executive.” He advised Bush that he could unilaterally launch the Desert Storm military engagement without congressional approval. On the other hand, he also advised Bush that the president did not enjoy inherent constitutional authority to exercise a line-item veto. In brief — and it’s a topic that will require extensive examination at the hearings — Barr sees the president’s power as wide-ranging and reposed in the president alone; but he does not see it as limitless.
As attorney general, Barr did not politicize the Justice Department, and he had no problem working with people of different political affiliations. He viewed the department’s work as apolitical and the views of nearly all department employees as irrelevant. I remember in discussion with him once, it came up that I had clerked for liberal icons Abner Mikva and Thurgood Marshall. He just sort of whistled and said, “Wow, you’re really liberal,” and the topic never came up again.
There is no doubt that Barr has some political views that dovetail with those of the president. Moreover, like Trump, he’s got a strong New York street side, though his parents were Columbia University professors, not rough-and-tumble business executives like Fred Trump.
But — and this is the most essential qualification of all — Barr plainly has the stature and the character to stand up for the department’s institutional prerogatives and to push back on any improper attempt to inject politics into its work. And to this extent, he is a sea change from Trump’s ill-advised, even shameful, installation of the unqualified yes-man Matthew G. Whitaker as acting attorney general and presumptive supervisor of the Russian collusion probe being run by former FBI director Robert S. Mueller III.
Moreover, Mueller himself was assistant attorney general for the Criminal Division when Barr was AG. I am very confident that Barr regards Mueller as a beacon of integrity and a prosecutor’s prosecutor.
That’s not to say he would agree with every investigative move that Mueller makes, and as attorney general, he could trim the special counsel’s wings. I would not be surprised if he regarded large independent counsel investigations, including this one, with some concern.
But there is no doubt that if he were to do so, it would be through direct, respectful discussion. And he has expressed support for the idea that the basic allegations of collusion between the Trump campaign and the Russian government are proper predicates for criminal investigation.
More important, in a fundamental way, Barr would see in any such move the immediate and long-term implications for an independent Justice Department and the rule of law. In our current straits — with an abominable acting attorney general and the real concern that the president might have selected a crusading, unqualified loyalist to head the department — Bill Barr is a big step in the right direction.